Document Type

Article

Disciplines

International Law

Abstract

In 1838, Thomas Drummond adequately described the modem conception of property: although property owners possess unique private rights, owners similarly have public obligations, including relinquishing their property rights to the government for public good. A government often has the right to "take" private property and convert it into an asset for the public good, although the private owner must receive compensation for the loss. The government is thus obligated to pay public funds for the private property. Takings law highlights this tension in property between the private right and the public good. Governments must balance this tension between duties and rights, preferably giving due diligence to both interests.

This Note will compare the takings analysis of the United States Supreme Court ("Supreme Court") with that of the European Court of Human Rights ("European Court"). When determining whether a measure amounts to a takings violation, the European Court and the Supreme Court frequently arrive at similar results. Yet, their respective approaches are markedly different. Whereas the Supreme Court relies upon defined elements of a taking, the European Court adopts a more malleable approach that considers elements beyond the definition of a taking. The two areas where this analysis is most prevalent are the compensation awarded for a taking and the definition of property eligible for takings protection.

Section II will discuss the relevant history and underlying principles that influenced the creation of each court's takings clause, as well as the basic takings analysis adopted by each court.2 Each court's takings analysis lays the foundation for that court's overall view of takings law. Section III evaluates how each court approaches compensation principles, ultimately deciding that compensation is a more definite and required principle in the Supreme Court, while the European Court recognizes compensation on a sliding scale of importance. Section IV analyzes the differences in each court's definition of protected property interests, ultimately concluding that the European Court maintains a broader definition. Through these different analyses, each court attempts to ensure the proper balance between public obligations and private rights inherent in property ownership. However, because each system views property differently, these analyses each weigh public obligations and private rights differently, sometimes sacrificing one for the sake of the other.

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